A token review.

The Fish and Wildlife service announced on Friday that it would review ten endangered species listing decisions that were identified by regional directors as having been inappropriately influenced by former Deputy Assistant Secretary Julie MacDonald. MacDonald, as some of you may recall, was the Deputy Assistant Secretary at Interior who decided that she needed to spend more time with her family shortly after the Interior Inspector General concluded that she acted inappropriately on numerous occasions, and (very) shortly before she was scheduled to testify before a newly hostile Congressional committee about a range of topics that included her conduct.

The decision that the Interior department has made here is disturbing. Reviewing these ten decisions is certainly a good thing - particularly for the involved species. Unfortunately, the documents that FWS has made available to justify this decision show that while they might have finally set some limit on the degree to which they are willing to let political appointees interfere in Endangered Species Act determinations, it's not much of a limit.

In addition to the news release (conveniently issued late on a Friday, just in time to make the Saturday newspapers that nobody reads), the FWS made a number of other documents available online. The material that is present there is interesting, but not quite as interesting as the material that didn't make it to that page.

On the page, we find a May 22, 2007 memo from Deputy Interior Secretary Lynn Scarlett to FWS Director H. Dale Hall, asking him to review MacDonald's involvement in Endangered Species Act determinations. This particular memo is short, and very direct:

Based on the questions that have been raised about Julie MacDonald's alleged involvement in certain projects and listing packages that were prepared by the Fish and Wildlife Service, please review all work product that were produced by the Service and reviewed by Ms. MacDonald and determine if any of those packages require any revision based on her involvement. Please provide the list of those needing attention by June 21, 2007. I look forward to the results of your review and your recommendations.

We also find the responses that Hall received from each of the FWS regions in response to his request that they review MacDonald's involvement in their work. What we do not find is his request itself. That's noteworthy, because that is the document in which Hall would presumably have provided the regional offices with the standards for determining if MacDonald's conduct was inappropriate enough to warrant re-examining the decision. Although the directions are missing, it's possible to get a sense of what Hall ordered by looking at the other documents. Based on that, it looks like the standard was very weak.

Hall's directions appear to have placed substantial restrictions on which inappropriate conduct would be examined. Cases where MacDonald acted to revise the scientific conclusions were included, if it was determined that her involvement resulted in a different decision. Period. Cases where MacDonald used her "discretion" to "interpret and implement" policy were not only excluded from the review, they were determined to be appropriate by definition:

I directed each Regional Director to involve their field office leadership to determine what, if any, ESA decisions had been modified or changed by DAS MacDonald inappropriately. This directive recognized two important points: 1) while there may have been inappropriate actions by DAS MacDonald in her interface with our career employees, the most important question to answer rests with decisions that were changed and the health of species that may have been undermined; and 2) the directive recognized that the Office of the Assistant Secretary does [emphasis in original] have the authority and privilege to be involved in policy interpretation and implementation. Policies established at the Assistant Secretary level that involve interpretation of law are both appropriate and legitimate in the operations of the Department of the Interior.

(source: July 12, 2007 memorandum from Hall to Scarlett)

That's right. If the Assistant Secretary makes a policy decision, it's appropriate. Never mind that the Assistant Secretary might have a conflict of interest such as having income of up to $1,000,000 a year from property that is habitat to a fish that was de-listed as a result of her guidance. (By the way, the decision in the case where she has property didn't make the review list.) If she interfered through changes in "policy," the decision is "appropriate."

It looks like FWS Director Hall decided to try to order that a few token cases be reviewed, in the hope of getting people to ignore the rest of the egregious assaults on threatened and endangered species that have taken place during the Bush Administration. Let's hope that Congress doesn't let him get away with it.